What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings?
International Arbitration (2nd Edition)
As counsel or solicitor in a Malaysian arbitration, a lawyer is required to abide by the rules of ethics and etiquette issued by the Malaysian Bar Council. These rules do not apply to non-lawyers acting in the same capacity.
The principal ethical code to be followed by arbitrators in Malaysia is codified in section 14, AA which relates to the impartiality and independence of arbitrators.
There are no mandatory codes of ethics that apply to all of the counsels and arbitrators conducting proceedings in Chile.
The Chilean Bar has its own Code of Ethics since August 2011 and it provides guidelines regarding the counsel-client relation, counsel’s confidentiality duty and conflict of interest. As to arbitrators, it provides restrictions in order to avoid conflict of interests and it also regulates the determination of arbitration fees. Notwithstanding, the membership to the Chilean Bar is not mandatory.
The Portuguese Arbitration Association issued a code of ethics for arbitrators that can be used within ad-hoc arbitrations or adopted by arbitral institutions. It contains guidelines for arbitrators concerning issues such as their independence and impartiality, duty to disclose, communications with the parties, costs and confidentiality. The code should be interpreted and integrated taking into account the IBA Rules on Conflict of Interest in International Arbitration. It has been adopted by institutions such as the Commercial Arbitration Centre of the Portuguese Chamber of Commerce and Industry and the Portuguese Arbitral Tribunal for Sports.
Professional standards applicable to counsels are determined by the Portuguese Bar Association Statute (Law 145/2015 of 9 September) which includes strict duties towards clients, tribunals, colleagues, etc.
Arbitrators must also comply with the ethical duties of the professional association to which they belong (if any). Luxembourg law does not include any provisions in this respect specifically applicable to arbitration.
In general, representatives and arbitrators in arbitral tribunals do not need to be lawyers or admitted to the bar. Parties may, however, only be represented by attorneys authorised by Swiss Law or a treaty in appeal proceedings before the Swiss Federal Tribunal.
According to Swiss law, lawyers are required to observe various professional rules such as duty of diligence, independence, avoidance of conflict of interest, and the attorney-client-privilege. Violation of these rules may result in disciplinary action by the cantonal supervisory authorities. In addition, the Swiss Bar Association stipulated various professional standards which should be observed by its members.
Generally, German law does not provide any arbitration-specific ethical codes or other professional standards. Counsels and arbitrators who are admitted to a German bar are bound by the ethical rules of the German Federal Lawyers’ Act. These ethical rules do not apply to foreign counsels and arbitrators, who are bound by the respective codes and professional standards of their home jurisdiction.
In practice, tribunals increasingly rely on ethical codes prepared by institutions for guidance (e.g., IBA Guidelines on Party Representation, IBA International Principles on Conduct for the Legal Profession, and The Code of Professional and Ethical Conduct prepared by the Chartered Institute of Arbitrators).
There are no national standards regulating the ethical issues specifically in the field of arbitration. The general ethical rules therefore apply.
The ethical codes that apply to arbitrators conducting proceedings in Panama are those of the arbitration institutions administering the proceedings. The two main arbitration institutions in Panama, CeCAP and CESCON, have enacted Codes of Ethics for arbitrators. The Panama Arbitration Law expressly provides that any person who has breached the ethical codes of any arbitration institution cannot be appointed as an arbitrator or continue acting in such capacity.
Moreover, the professional standards that apply to Panamanian lawyers acting in arbitration proceedings is the Code of Ethics of the Panamanian Bar Association.
The DLAD has published the ‘Charter for the Conduct of Advocates and Legal Consultants in the Emirate of Dubai’ (the “Charter”). The Charter applies to legal services including arbitration. This Charter however remains in draft form and therefore may be subject to amendment.
The DIFC Court’s Code of Best Legal Professional Practice (“DIFC COP”), applies to both practitioners who undertake contentious work in the DIFC Courts and those who undertake non-contentious work but are licenced to conduct business in the DIFC ‘(and who are registered with and authorised by DFSA (Dubai Financial Services Authority) as Ancillary Service Providers)’. The DIFC COP does not however have any regulatory status.
Swedish counsels and arbitrators admitted to the Swedish Bar Association must observe the Bar Association’s Code of Conduct.
No specific ethical code on arbitrators exists. However, the Swedish Supreme Court has explicitly recognized the IBA Guidelines on the Conflict of Interest in International Arbitration.
The SCC Rules provide that the arbitrators must be and remain independent and impartial.
No particular rules are applied here, other than those generally applicable to Spanish attorneys acting before the Courts.
Counsel must always comply with the rules applicable to proper general conduct, which are mainly related to the principle of good faith towards the arbitrators and adverse party. These same rules apply to any foreign counsel acting in Spain within any arbitration process. There are no specific rules governing the conduct of Spanish counsel acting in arbitrations abroad, and this matter should be addressed under the rules applicable to the seat of the arbitration.
As opposed to appearances before Spanish Courts, where the presence of a lawyer admitted to practice in Spain is needed, there is no specific rule restricting the appearance of lawyers from other jurisdictions in arbitration processes and, sometimes, foreign lawyers have indeed acted as counsels within arbitrations held in Spain.
Serbian attorneys are bound by the ethical standards of the Serbian bar Association in all the proceedings where they participate, including also arbitration proceedings. However, parties may agree on application of certain ethical codes and standards of conduct, such as IBA Guidelines on Parties’ Representation in International Arbitration.
ADR providers and practitioners shall have the same civil liability for acts done in the performance of their duties as that of public officers, as provided in Section 38 (1), Chapter 9, Book I of the Administrative Code of 1987. Thus, they shall be civilly liable for acts done in the performance of official duties if there is a clear showing of bad faith, malice or gross negligence.
For counsel in arbitration proceedings, the Code of Professional Responsibility applies.
The Arbitration & Conciliation Act, 1996 provides that the arbitrator(s) should be impartial and independent. The same is governed by the fifth and seventh schedule as previously discussed. In general practice, for the counsels, the ethical codes and other professional standards are governed under Advocates Act 1961.
In addition to the legal rules regarding the capacity for acting as arbitrator and the reasons for challenging the appointment of arbitrators, the regulations and norms issued by the centers of arbitration contain Codes of Ethics, as well as conduct and ethical duties and obligations that the arbitrators must observe.
The following are some relevant ethical duties and obligations of arbitrators set forth in regulations of arbitration centers:
- To faithfully carry out duties while strictly observing the principles of confidentiality, discretion, absolute impartiality, and neutrality, as well as other duties stipulated in the Code of Ethics;
- To act with diligence and promptness while conducting the arbitration proceedings with agility; to issue resolutions required for this purpose, and to order the necessary proceedings for the prompt resolution thereof;
- To maintain the confidential nature of the meetings held during the arbitration proceedings as well as prior to the issuance of the award;
- To comply with and observe the Code of Ethics; and,
- To have no ex parte contact with the parties during the arbitration proceedings.
Any exclusion of arbitrators is resolved by the relevant Board of Directors of the arbitration center, at the arbitration center Director's request.
Attorneys must observe ethical rules as provided in local laws.
An arbitrator must not be a minor or under legal custody, and must not have been deprived of his or her civil rights by reason of criminal conviction in a felony, misdemeanor in crimes relating to honour or by reason of bankruptcy. Arbitrators have ethical duties. They are required to perform the role of the judiciary for the dispute in question and must therefore conform to the ethical standards of a judge which includes impartiality, neutrality and independence. Counsel are held to the ethical rules governing the legal profession in Egypt, including confidentiality and other duties to their clients.
There are no formal ethical codes or other professional standards applicable to arbitrators. Counsel in an arbitration are, of course, bound by the ethical code of the profession. Breach of any general ethical standard will most likely lead to challenge of the award in the ordinary courts.
There are no specific ethical codes or professional standards that apply in general to arbitrators conducting arbitration proceedings. However, the Permanent Arbitration Court established at the Croatian Chamber of Economy has its own Code of Ethics that applies to arbitrators conducting the arbitration proceedings within the Arbitration Court.
Counsels in the arbitration proceedings, who are attorneys at law in Croatia, are in general bound by the Code of Ethics of the Croatian Bar Association.
Both Cap. 4 and ICA Law provide that an arbitrator has to proceed with speed in relation to the arbitration proceedings and must be unbiased and act accordingly. In the event the counsels are lawyers, then they are bound by the Advocates’ Law, Cap. 2 and the Advocates’ Code of Conduct Regulations of 2002 which set out various rules of professional conduct and ethics.
Apart from a resolution that was adopted by the Paris Bar on 26 February 2008 allowing counsel to prepare witnesses before oral examination in international arbitration, French law does not provide specific ethical codes or standards that apply to counsel and arbitrators. Accordingly, counsel and arbitrators should respect the general ethical codes and other professional standards as provided by the French Bar or by the ethical codes and professional standards as provided in their local bars or jurisdictions.
Counsel and arbitrators that are admitted to the Italian Bar are bound by Code of Ethics of the Italian Bar Association. Furthermore, also foreign lawyers who practice in Italy shall abide by those rules (article 3 of the Code of Ethics). According to the Code of Ethics, lawyers shall comply with the duties of independence, honesty, integrity, probity, dignity, decorum, diligence and competence (article 9 of the Code of Ethics). Article 61 of the Code of Ethics sets out specific duties of impartiality and independence for lawyers acting as arbitrators.
In addition, arbitrators appointed in proceedings under the CAM Regulation shall comply with the rules of ethics set out in the CAM “Arbitrator Ethical Code”.
Nigerian lawyers conducting proceedings as counsel are bound by the Rules of Professional Conduct for Legal Practitioners, 2007 in carrying out their services.
There are no generally applicable codes or standards that would subject international professionals to additional good conduct obligations when acting as counsel or arbitrator in Austria. However, members of the Austrian bar are, as a matter of course, bound by the rules of the Austrian Bar Association, European attorneys by the CCBE Code of Conduct. Further, home state codes or professional standards may set forth additional obligations to be complied with irrespective of the place of arbitration.
Counsel in the United States are bound by the ethics rules of the states in which they practice, which largely are based on the Model Rules of the American Bar Association (‘ABA’). These rules typically cover conflicts of interest, financial arrangements, conduct before a tribunal, and confidentiality. ABA Model Rule 5.5. addresses the multijurisdictional practice of law and has been amended to address practice by U.S. lawyers in foreign jurisdictions and by foreign lawyers in U.S. jurisdictions. Many states have promulgated further ethical rules to address international arbitration. Other states, like Texas, have not adopted Model Rule 5.5 and have no ethics rule specifically addressing lawyers engaged in international arbitrations.
Arbitrators in the United States are generally required to observe standards of impartiality and neutrality. Particular states may impose further requirements, such as California’s Ethics Standards for Neutral Arbitrators in Contractual Arbitrations. In addition, arbitral institutions offer training and, in some cases, non-binding guidance, such as the JAMS Ethical Guidelines for Arbitrators or the AAA/ABA Code of Ethics for Arbitrators in Commercial Disputes.
There are no arbitration-specific rules of conduct pertaining to attorneys acting as counsels and/or as arbitrators in the Greek legal system. The Code of Lawyers (Law 4194/2013) and the Lawyer’s Code of Conduct are generally applicable and there may be instances in which their provisions are of interest also with regard to arbitration proceedings.
Insofar that the parties to the arbitration agreement have not agreed otherwise, the Arbitration Law does not provide for standards or specific requirements that an arbitrator must meet by virtue of his office as an arbitrator. Notwithstanding the foregoing, in accordance with Section 30 of the Arbitration Law, an arbitrator who agreed to his appointment must act with loyalty towards the parties. In addition, the Supreme Court in Israel determined that while the Arbitration Law provides the parties with autonomy to shape the proceeding as they see fit, in any event, an arbitrator is subject to certain criteria such as keeping the rules of natural justice.
Moreover, as a rule, arbitrators who are members of arbitration institutes in Israel must meet various prerequisites in order to be accepted to these institutes as arbitrators and also undertake to comply with the ethical code applied by these entities.
With regard to attorneys, Israeli attorneys are subject to various duties and rules of ethics that apply to them (by virtue of the Bar Association Act, 5721-1961 and the Bar Association Rules (Professional Ethics), 5746-1986), by virtue of their office as attorneys, whether under court proceedings or arbitral proceedings.
An arbitrator conducting an arbitration in this jurisdiction will primarily be subject to any applicable ethical codes or professional standards in their own jurisdiction. There are also a number of non-binding ethical codes for arbitrators (including the IBA's Rules of Ethics for International Arbitrators and its Guidelines on Conflicts of Interest in International Arbitration).
Further, the 1996 Act states that the tribunal shall (a) act fairly and impartially, and (b) adopt procedures to provide a fair means for the resolution of the matters (s.33).
Counsels are subject to the strict ethical obligations under Romanian law regulating lawyers’ practice, the statute of legal profession and by the Charter of Core Principles of the European Legal Profession and Code of Conduct for European Lawyers adopted by The Council of Bars and Law Societies of Europe.
Regarding arbitrators, there is no specific body of law or rules regarding their ethical standard. However, both the Code of Civil Procedure and CICA rules of arbitration provide several obligations of the arbitrators during their office such as confidentiality, impartiality, observance of the applicable deadlines etc. Failure to observe some of these obligations might trigger the arbitrators’ liability, as detailed above. As well, in practice, the parties may agree that the IBA Rules of Ethics for International Arbitrators might apply.
Legal Profession Act No. 1136 regulates the ethical standards the attorneys are subject to. These ethical standards are also applied for the attorneys during the dispute resolution through the arbitration.